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Witnessing a car incident

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    #62
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    odyssey06 wrote: »
    GSOC discipline Garda for neglect of duty for failing to followup on report of rape.

    https://www.msn.com/en-ie/news/newsireland/garda-did-not-investigate-rape-complaint-despite-being-reminded-15-times/ar-AABoOIa

    Doesnt say anything about discretionary powers.

    There have been a few cases where the Garda Commissioner (not GSOC, but sometimes on their recommendation) has disciplined members for neglect of duty for using discretion, that does not mean the decision is correct, and to note - the GSOC report only gives a case summary so there may be other facts at play which we are not privy to.

    The fact is (and which is in accordance with the law) a member of Gardaí can't be disciplined for neglect of duty when there is "good and sufficient cause" for that neglect of duty.

    Basically that means when there is a reason which is legally sufficient they can't be disciplined. It is well settled that discretion is a legal privilege and power provided for under common law and protected by statute, therefore there is no question as to weather or not discretion is legally sufficient.

    The problems with such disciplinary actions is that any decision to an appeal board (note not a Court) is legally binding.

    A guard can only challenge such final decisions by way of a Judicial Review, and bringing a JR is neither easy nor cheap, there are very few such cases taken, however when they are taken in many instances the Guard has won, the most recent cases I can think of being the Garda McEnery vs Commissioner of AGS [2016] IESC 66 case, the point being reinforced is that disciplinary procedures are often wrong in law.

    Duties of the Gardaí provided for under the Garda Siochana Act 2005 can not affect any power, immunity, privilege or duties the Gardaí have under the common law, that is a fact, and one which is provided for by an Act of the Oireachtas, this means that any duty conferred on the Gardaí by the Act does not override any power under common law, therefore their power of discretion is supreme of their duty to perform any particular duty, this was all well highlighted and documented by the various investigating authorities during the FCPN scandal.

    The ability to discipline is subject to there being no good and sufficient cause, again a fact as provided for by an Act of the Oireachtas.

    If such a disciplinary case found itself subject to a JR there is no question as to who would win, no executive authority can subject the Gardaí to a direction.


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    #63
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    RobbieMD wrote: »
    Prepared statements are used. The Garda puts the caution at the top and some other bits. Reads it over to them and they sign it in the Garda’s presence. Happens sometimes but not a lot.

    Indeed it is not common, in fact I would go so far as to say it is in fact very rare, where it does happen it is usually to set out a defence or alternatively to make a limited admission or exculpatory account, in such cases the solicitor will advise their client to answer no comment to any subsequent questions to maintain the integrity of the statement. There is a real danger that the Gardaí can introduce something to contradict the prepared statement, hence the reason you rarely see them.


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